Free Speech or Defamation? Newest Regulation according to ambiguous provisions on Electronic Information and Transactions Law

Thursday, October 07 2021 | INFORMATION TECHNOLOGY

Defamation based on Article 27 section (3) Law Number 19 of 2016 on the Amendment to Law Number 11 of 2008 on Electronic Information and Transactions (“Law on Electronic Information and Transactions”), which is the lex specialist of Article 310 and Article 311 of the Indonesian Criminal Code, brings fresh air in the era of technology. It stipulates that “Any Person who knowingly and without authority distributes and/or transmits and/or causes to be accessible Electronic Information and/or Electronic Documents with contents of affronts and/or defamation”. In addition, the Explanation of Law stipulates that Distributing, Transmitting, and Making Accessible means sending Electronic Information and/or Documents to many people or various parties through an Electronic System, or cause Electronic Information and/or Documents to be known by other parties or the public (general). But, instead of following technological developments, Law on Electronic Information and Transactions has even become a law that contained many ambiguous provisions or sufficient to say, provisions that are open to multi-interpretation with no clear definition that is prone to ensnaring victims anywhere, anytime.

Our managing partner, Mr. E.L. Sajogo, S.H., MCIArb. in an e-class learning series under the theme of The Uses of Social Media for Aesthetic Practitioners in terms of Medical Ethics Aspects, the Legal Side and Practitioners of Beauty Clinics, is one of the invited speakers who brought materials from the legal side, with the title “Cyber Defamation: How to React the (un)Expected. A Thin Line of Crossing between the Law and Free Speech.” The webinar was held by Miracle Academy, on Saturday, June 26, 2021 via Zoom Meeting. It makes the said forum to be one of the first webinars to discuss about the latest regulations, namely the Joint Decree of the Minister of Communication and Information, the Attorney General, and the Chief of Police Number 229 of 2021, Number 154 of 2021, Number KB2/VI/2021 on Implementation Guidelines of Certain Articles in Law on Electronic Information and Transactions (“Implementation Guidelines of Law on Electronic Information and Transactions”)

The main points of Implementation Guidelines of Law on Electronic Information and Transactions in accordance with the theme of the e-class learning series, that is Article 27 section (3) Law on Electronic Information and Transactions, which are as follows:

  1. Humiliation, which is categorised as insults, ridicule, and/or inappropriate words, are not a criminal offense but are classified as minor insults based on Article 315 of the Indonesian Criminal Code.
  2. Judgements, opinions, evaluation results, or a fact are not classified as insults and/or defamation.
  3. This article is an absolute complaint offense. Thus, the victim himself must filed a complaint to law enforcer, except for minors or under a custody.
  4. A complaint offense, in which the victim itself should be the one who reports, not by institutions, corporations, professions, or occupations.
  5. The focus of punishment is not on the victims’ feelings, but rather on the intention of the perpetrators’ actions.
  6. Criteria of “General or public” is interpreted as a collection of many people who mostly do not know each other.
  7. In addition, the “publicly known” criteria can be in the form of uploads on social media accounts with settings that can be accessed by public, or on open groups, therefore it is not an insult offense and/or defamation if the content was transmitted through private or closed groups such as family groups, close friendship groups, professional groups, office groups, campus groups or educational institutions are not included in this article.
  8. In the case that the news on the internet is carried out by the press institution, then law Number 40 of 1999 on the Press is applicable, unless a journalist personally uploads his personal writings on social media or the internet, then it is still subject to this article.


Hopefully, with this new implementation guidelines, the number of victims of the ambiguous provisions can be reduced, and people can begin to recognize alternative dispute resolution or mediation to resolve problem like this with a win-win solution.

For further inquiries on the matter, please do not hesitate to contact Ms. Gabriella Lienardo ([email protected] or [email protected]).

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